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Scott Skinner-Thompson, The First Queer Right, 116 Mich. L. Rev. 881 (2018) (reviewing Carlos A. Ball, The First Amendment and LGBT Equality: A Contentious History (2017)), available at http://scholar.law.colorado.edu/articles/979/.

Abstract

Current legal disputes may lead one to believe that the greatest threat to LGBTQ rights is the First Amendment’s protections for speech, association, and religion, which are currently being mustered to challenge LGBTQ anti-discrimination protections. But underappreciated today is the role of free speech and free association in advancing the well-being of LGBTQ individuals, as explained in Professor Carlos Ball’s important new book, The First Amendment and LGBT Equality: A Contentious History. In many ways the First Amendment’s protections for free expression and association operated as what I label “the first queer right.”

Decades before the Supreme Court would recognize the importance of equal treatment of same-sex relationships, the Court protected the ability of queer people to espouse explanations of their identities and permitted them leeway to gather together to further explore and elaborate those identities. In this way, the First Amendment served an important incubating function for the articulation of equality arguments in favor of LGBTQ individuals at the same time it also created space for greater visibility of queer people in American society.

But the First Amendment is “the first queer right” in a second sense. As this review essay argues, the First Amendment facilitated a more robust and wide-ranging articulation of queer identity than the more vaunted equality claims that followed. One unfortunate side effect of transitioning from First Amendment claims to equality-based claims was the narrower, straighter picture of queer people it presented. Like the doctrinal history chronicled by Ball, the narrative history of how LGBTQ rights were framed and conceptualized under the First Amendment is important to contemporary debates about LGBTQ rights because it suggests that the First Amendment may yet have important work to do on behalf of LGBTQ rights — it could still be used as a means to further expand social understandings of sexuality and gender identity, and encourage future contestation of those very same “queer” identities. In other words, the First Amendment, like the meaning of the word “queer” itself, begs for further discursive contestation.

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